Aug 1, 2008 By Amy Zalar 6 min read

Attorneys involved with a Fayette County Zoning Hearing Board case in which a special exception to allow construction of wind turbines in Georges and Springhill townships was denied and subsequently appealed presented their cases Thursday to a county judge. Judge Ralph C. Warman can make a determination to overturn the denial, uphold it or remand it back to the zoning hearing board.

While the attorney for the company seeking to construct the wind turbines argued the zoning hearing board improperly denied their special exception and variance requests, the zoning hearing board attorney argued that the board merely followed the ordinance in issuing the denial.

PPM Atlantic Renewable Energy Corp./Iberdrola Renewables attorney Daniel Rullo disputed an allegation by zoning board solicitor Gretchen Mundorff that the case affects every resident in Fayette County because of the impact on the view shed.

“Each appellant is a landowner. They own the ridge. It is not owned by Fayette County,” Rullo said.

Mundorff’s argument that the county would lose tourism money if the 24 turbines were constructed along the ridge was countered by Rullo’s assertion that beauty is in the eye of the beholder.

Warman then pointed out that while tourism is the second-leading industry in Fayette County, it is the top industry in Somerset County, although the are numerous windmills there.

Earlier this year attorneys for PPM, based in Portland, Ore., appealed the zoning board’s denial, urging the Fayette County Court of Common Pleas to assume jurisdiction of any additional proceedings.

The zoning board unanimously ruled in March to deny the special exception for a wind-powered, electricity-generating facility and a variance from height and setback requirements.

The denial affects a significant portion of a project called the South Chestnut Windpower Project. The plan included construction of a total of 24 wind-powered turbines in Georges, Springhill and Wharton townships.

The six windmills in Wharton Township were not part of the county zoning board decision because Wharton Township has its own zoning. The Wharton Township zoning board previously gave approval for those windmills.

Rullo said Thursday the company met the conditions needed to grant approval of the special exception and variance and the zoning hearing board essentially “trumped” the county commissioners and denied the request. The county commissioners approved the zoning ordinance the zoning board is charged to follow.

“I believe the evidence was very clear over the four days that we met the eight standards,” Rullo said.

He requested that if Warman remands the case, it is done with instructions to the zoning board members on what to examine because of the bias that he said exists against the project on the part of the board and its solicitor.

Rullo said the zoning ordinance allows wind turbines under special exception but the maximum height under the ordinance is currently 250 feet, while the industry standard has changed to 262.5 feet, which Rullo said was “essentially no difference.”

He also pointed out that variances from setbacks should not have been denied because the affected property owners agreed to the changes.

Rullo said what happened was the zoning hearing board allowed personal preference and speculation to stop a $100 million project.

Mundorff said the board “would take great offense” to the notion it attempted to rewrite the case.

“This isn’t about the pros and cons of alternative energy sources. This is a zoning case and the zoning hearing board is charged with following the ordinance and balancing a landowner’s right to develop their property with the health, safety and general welfare of the public,” Mundorff said.

Mundorff specifically referenced the fact that the 250-foot maximum height is listed in the ordinance and said setback requirements are put in the ordinance to protect adjacent property owners.

Warman asked why the court should care if the adjoining property owner signs away their rights.

Mundorff said people waive things that are not good for them, adding that the plan is to put wind turbines “on our Chestnut Ridge, spanning 3 1/2 miles.”

Mundorff said the view shed would be adversely impacted with the windmills, adding that a potential bat kill could hurt the ecosystem and the county’s tourism industry may be hurt if the project is built.

“I have been the zoning solicitor for 20 years, and I have never seen a case that affects so many people. This affects every person of Fayette County,” Mundorff said. “Three and a half miles is a great distance of ridge and you can’t mitigate the effect of turbines on the ridge.”

Mundorff said the board made the only decision that made any sense for all the residents of Fayette County.

“I’m really proud of my board,” Mundorff said.

Rullo countered that the wind turbines will be visible.

“There is nothing to do to mitigate. A wind turbine can be seen. You can’t hide it,” Rullo said.

He added that the company did exactly what the ordinance asked them to do.

“Nothing attempted to be hidden,” Rullo said.

Gary Altman, who represented Thomas John Bozek III of Springhill Township, said his client is opposed to the windmills because they make too much noise.

Bozek did decibel readings and has testified that he is afraid his recording equipment would be rendered useless if the turbines are constructed where planned. A turbine is proposed for about 1,900 feet from Bozek’s home.

“You really have to be a mile away,” Altman said.

Rullo said PPM wasn’t seeking a change in the permitted decibel levels, adding that if the levels in the zoning ordinance are not met, the company would face sanctions that include shutting down. The ordinance states a noise level of 70 decibels is permitted at a neighboring property line.

“There is a constant monitoring process. This company isn’t in the business of coming in and leaving,” Rullo said.

Attorney Richard Bower, representing property owner Neil Brown, said he supports Rullo’s position, pointing out that Brown agreed to consolidate his property to overcome setbacks.

County solicitor Joseph E. Ferens Jr. said the majority of county commissioners asked him to intervene in the case.

“Their feeling is the petitioner met the burden and all eight standards,” Ferens said.

In May, Fayette County Commissioners Vincent Zapotosky and Angela M. Zimmerlink directed Ferens to file a motion to intervene and Ferens explained that by filing the motion he was essentially petitioning the court on behalf of the commissioners to ensure that the zoning board did what it is charged to do under the law.

Zimmerlink said she wanted the notice filed to ensure the zoning ordinance was properly enforced and to confirm that the zoning board didn’t act in a legislative manner.

Commissioner Vincent A. Vicites voted against the action, saying it set a bad precedent.

Zapotosky said he wanted to intervene to ensure the zoning board did what it was supposed to do.

At the conclusion of the testimony Thursday, Warman said he would give attorneys in the case 20 days to respond to Rullo’s brief.